CHAPTER V
THE RIGHT TO FREEDOM AND PROHIBITION OF INVOLUNTARY SERVITUDE

In Article 6 the American Convention states that military service or work or service that forms part of normal civic obligations "do not constitute" forced or compulsory labor and therefore are not covered by the prohibition against slavery and servitude therein established.

Nevertheless, those exceptions--military recruitment and military service--cannot be exacted unlawfully, arbitrarily or in a manner that is discriminatory in nature. Military service must be just that, but not a form of servitude for the soldiers calculated to satisfy the personal needs of their superiors in the military hierarchy. The functions and discipline of the recruits must be based on military needs and plans, as established in the Constitution.

The Commission has received information and numerous petitions that concern irregular methods of enforced recruitment that violate, among others, the rights to nondiscrimination (Article 1), personal liberty (Article 7), a fair trial for a determination of one's rights and obligations, regardless of their nature (including military) (Article 8) and, in some cases, humane treatment (Article 5) and the right to life (Article 4), for service in both the Army and the Civilian Self-defense Patrols.

The Commission has received information from the Government stating that a new Law of Recruitment provided to correct the irregularities that have occurred relative to military service has been presented to Congress. This proposed law, according to the Government, contains mechanisms that would guarantee non-discriminatory application, and that many of those mechanisms are already being implemented.

I. ENFORCED RECRUITMENT FOR MILITARY SERVICE

Every year thousands of Guatemalan citizens are recruited to perform military service. The vast majority are indigenous peasants who do not have sufficient knowledge of their rights or inhabitants of small communities in the interior. While military service is contemplated in Guatemala's Constitution, there are certain limitations or exceptions, and there are certain legal formalities that have to be observed when recruiting. Those formalities are intended to safeguard the individual's rights. The Army's modus operandi in recruiting people in Guatemala completely disregards those exceptions or limitations and, by not complying with the legal formalities, violates individual guarantees.

The law provides that when they reach 18 years of age, all able-bodied young men are to render 30 months of military service. Demographically speaking, this would mean an army of a half a million people. Since at present the Army has between 45,000 and 50,000[63] men in arms, a selection has to be made. The legal procedure to be followed for that selection would be voluntary enlistment or recruitment by drawing lots; instead the selection is made in arbitrary round-ups that discriminate on the basis of race and economic position; in other words, they target poor, indigenous young men.

The Army, particularly on weekends, operates through military commissioners in small rural communities in Guatemala, seizing young men on the streets, squares and other public places, forcing them onto trucks and taking them to the places where they are to perform their military service. First, the military commissioners take upon themselves the authority to detain persons, even though this authority is reserved for the National Police, who can arrest persons either on the basis of a warrant or in flagrante delito. Moreover, overstepping what the Army Statute stipulates as being the proper recruitment procedure, commissioners detain young men without the summons required by law.

The Army Statute establishes a number of grounds for exemption from military service[64] though it has become impossible to invoke any exemption, particularly in a case of enforced recruitment. Some of the young men these round-ups pick up are their families' sole source of support. It not only leaves their families helpless, but also with the agony of not knowing their whereabouts for long periods of time.

Another upshot of this modus operandi is that many minors are detained. Under the Guatemalan Minors Code, the assumption must be that a child is a minor. Nevertheless, for a minor who has been forcibly recruited to be released, the Commander of the Military Zone must be shown the minor's birth certificate. As the Archbishop's Human Rights Office has pointed out: "This means that families must pay transportation costs and the cost of the paperwork, with the added irritant of having to inquire with the military authorities to find out which military zone or post the minor was taken to, since in many cases the family can go as long as a month without being notified that its son was recruited. All this takes on the overtones of a kidnapping."

In its 1992 Report, the Procurator for Human Rights maintains that the situation this year varies according to the areas of the country and their military commandants.

Even in cases where the formal recruitment requirements are observed, i.e., with a summons based on vital records, recruitment is clearly discriminatory. A former Chief of the Public Prosecutor's Office, Mr. Acisclo Valladares Molina, admitted as much on July 8, 1992,[65] in response to a massive protest by inhabitants of municipalities in the Quiché. He said that in Guatemala, recruitment is discriminatory; as a rule, the recruitment boards call up young farm men, thereby drawing distinctions between people; they affect the communities more when the individuals involved are heads of household and its sole source of support.

The illegalities are such that mentally retarded young men are sometimes detained and forcibly recruited.[66]

Another well-known case happened at the University of San Carlos in August 1990, where 80 university students were recruited without a recruitment notice and despite the fact that university students are exempt from military service.

Though up until then the only victims had been young indigenous men, when these university students were rounded up there was a public outcry against the illegal recruiting practices. The incident was investigated by members of the legislature and the Attorney for Human Rights had to call for "an end to this outrage" (Prensa Libre, March 18, 1991).

In public statements, a source close to the Army[67] condemned the recruitment methods, saying that they had to be reformed because recruits were being forced into "servitude". He argued that the recruitment was discriminatory since "it always traps farm men or poor young men, who are then forced to provide their services to military officers, working as their gardeners, chauffeurs or servants."

The Army has responded to this type of criticism by arguing that military service is mandatory and violence has never been used. Military spokesman Col. Luis Arturo Isaac pointed out in May 1990 that of the 900 young men forcibly recruited in the last week in April, half had been released and the rest had volunteered for service. Isaac[68] defended the Army's recruitment policy by arguing that "it gives poor youngsters an opportunity, since they earn a salary, get free meals and other benefits." He admitted that the recruitment did affect the poor, stating that "humble folk have always sent their sons into military service, unlike families of a certain economic class who have always been opposed to this constitutional obligation."

The positive reactions by some State institutions, such as the Army's own acknowledgement of abuses in military recruitment (Siglo XXI, January 30, 1991) and the court marshalling of military personnel for those abuses ("El Gráfico", February 18, 1991) does not seem to have brought them to a halt.

Though in January 1992 the Minister of Defense claimed that such practices had ceased to exist, subsequent testimony refutes this. One such statement was made on January 30, 1992, by a high-ranking government official:

I would like to refute the above statement since yesterday I was a witness to the brutish, pathetic procedure of impressing Indians into military service. It happened at a place known as "Cuatro Caminos" in the municipality of San Cristóbal in the Department of Totonicapan. At the time I was headed back to Guatemala City from Quetzaltenango. At around 5:00 a.m. I saw a military officer, accompanied by a number of civilians, stopping the out-of-town buses. He told all the men to get off the bus and then proceeded to pick out the young men, especially the Indians; those that were well-dressed and had ladino features, were allowed to continue on their way. But not those who were detained in such an obviously unlawful manner, during nonworking hours and without a warrant from a competent authority. As if that were not enough, he did not allow those detained to get their baggage... In all events, it is heartening to know that the minister intends to abolish this shameful practice, which has for years preyed upon our Indian people.

Signed: Luis López Maldonado
First Vice President of the Nation[69]

On February 2, 1992, the Archbishop denounced the continuation of these practices and stated that boys as young as 13 were being unlawfully recruited; they are beaten and even kidnapped by the soldiers. At the time, he stated that there were at least 100 young men "disappeared" who were said to have been forcibly recruited by the Army.

In this report, the Attorney for Human Rights states that in the first half of 1992, he processed 267 complaints of unlawful military recruitment, handed down decisions on 131 of those complaints and dismissed 62. In the ruling, "the Commandant of the respective Military Zone, the Minister of National Defense and the President of the Republic, as Commander-in-Chief of the Guatemalan Army, are censured and military authorities are urged to comply with those provisions of the Constitution that concern military service."

Forced Recruitment and Habeas Corpus

The Commission is disturbed by the unlawful military recruiting practices, doubly offensive because they discriminate on the basis of race. But it is also troubled by the fact that the legal remedy of habeas corpus is ineffective in these cases--and in others reviewed in this report--; in theory, habeas corpus should be the proper remedy to determine the whereabouts of the individual and the reasons why his freedom is being restricted.

The Commission has heard of cases in which the legal authorities have denied a petition of habeas corpus, with no possibility of appeal, without having complied with the requirements stipulated by law[70], which require the judge to confirm the legality of the warrant and to establish the physical condition of the person in question. Judges deny the grounds for a writ of habeas corpus once they obtain information from the Army concerning the military zone wherein the individual on behalf of whom the application was filed is discharging his military service.

Forced Recruitment Cultural Rights and the Rights to Psuchologycal Integrity and dignity

Given the provisions of Guatemala's Constitution and of the American Convention concerning cultural rights, the Commission is also disturbed by the destructive effects that recruitment and military service practices of this type have. The following statement[71] captures the substance of a number of submissions that the Commission has received in this regard.

As poor and humble people we have our own culture, one of respect; our ancestors never taught us alien ideologies. The lesson our ancestors handed down to us is that of working collectively; in other words: to live in peace, united as brothers and sisters, and to work for the economic and social development of our peoples. This military recruitment system is robbing us of our culture by forcing our sons to kill their own brothers, to steal, to rape, to become "machista," etc. The inhuman training methods that our sons are subjected to at the garrisons and the mistreatment they receive at the hands of high-ranking military officers are because our sons are seen as objects and our religious beliefs and our culture do not matter.

II. ENFORCED RECRUITMENT FOR CIVILIAN SELF-DEFENSE PATROLS

The unlawful enforced recruitment to participate in the Voluntary Self-defense Committee (CVAC) is clearly a violation of human rights. First, to be forced to participate in an activity that is defined as "voluntary" is by definition a violation of the right to personal liberty and the prohibition of servitude.

Moreover, the arbitrariness, coercion and scare tactics used in recruiting for the CVACs are typical of many of their activities. The chapter on "The Voluntary Civilian Self-defense Patrols" contains more details about this practice and about its disturbing reappearance since August 1992, days after the government and the URNG reach an agreement at the "Peace Negotiations" in México, whereafter the government will not promote the creation of new CVACs, and the URNG for their part agree not to attack them.

Notes___________________

[63] Information received by the Commission in its interview with authorities from the Ministry of Defense, October 1992.

[64] Among the grounds for permanent exemptions are chronic illness or incurable or contagious disease; disabling mental or physical impediment; being an only child and the source of family support. The temporary exemptions include being an announced or elected candidate for public office, or being a minister of any faith.

[65] "La Hora", July 9, 1992.

[66] This is the case of Julián Chuta, taken in his village of San José Posquil, Chimaltenango; he was finally released in January 1992, after spending eight months in confinement and after a habeas corpus petition filed on his behalf was denied.

[67] Statements by the attorney for the military officers accused of participating in the attempted coup d'état of May 1989.

[68] Central America Report, May 1991, p.135.

[69] Letter to the Editor. "El Gráfico" January 30, 1992.

[70] Law on amparo, habeas corpus and constitutionality. Decree 1-86.

[71] Memorial from 400 members of eight communities in Santa Cruz del Quiché to the Public Prosecutor's Office, dated June 28, 1991. Copy given to the Commission by their representatives during the Commission's on-site visit in November 1992.